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State v. Mason11/10/2005
Because Defendant does not challenge the sufficiency of the convicting evidence, we will only briefly outline the evidence supporting her conviction. Officer Richard Foley with the Metro Nashville Police Department was on routine patrol on the night of April 5, 2002, when he noticed Defendant's car make a sharp left turn in front of him shortly after midnight. Officer Foley followed Defendant for approximately a mile. During this time, Defendant's car crossed the white line into the left lane twice. Defendant's car at one point also swerved from the middle lane into the right turn lane and back again into the middle lane. Officer Foley initiated a stop, and Defendant pulled into a parking lot. Officer Foley said Defendant's eyes were watery, her speech was slurred, and he detected an obvious odor of alcohol on her breath. Defendant experienced difficulty in retrieving her driver's license. When she exited her car, Defendant fell back, and then fell again when she walked toward the patrol car. Officer Foley called for another officer to provide back-up.
Defendant repeatedly refused to take the field sobriety tests. Officer Foley explained the implied consent law to Defendant and warned her that if she also refused to take a blood alcohol test, her driver's license could be suspended. Defendant continued to refuse to submit to either the field sobriety tests, a blood alcohol test or a breathalyzer test. Defendant told Officer Foley that she had only had five hours of sleep within the past twenty-four hours. Defendant said that she had been to a restaurant that night, but she denied that she had consumed any alcohol.
Officer James Davis, Jr. responded to the request for back-up. Officer Davis said that Defendant was agitated during the stop, her speech was slurred, and there was an odor of alcohol about her.
A few minutes after the jury began deliberations, the trial court discovered that the court clerk had inadvertently given the jury a copy of count two of the indictment charging Defendant with violation of the implied consent law. Defendant moved for a mistrial, and the trial court responded,
I don't blame you for asking for it, but out of respect for you and the jury and the State, I'm going to decline to rule upon it now. I think it is important to find out if any juror saw it. Then if they did, did it affect their judgment or what have you? But I will do that after the jury comes back in.
Defendant asked the trial court to voir dire the jurors individually about the extraneous information. After the jury returned a guilty verdict, the trial court posed three general questions to each juror: whether they saw count two of the indictment; what they understood count two to mean; and whether seeing count two influenced their decision.
Seven jurors reported that they saw count two of the indictment. Four jurors said they did not see count two of the indictment. One juror could not remember whether he had seen count two of the indictment. Six of the jurors who read count two of the indictment said that they did not think that Defendant was charged with another offense, and considered Defendant's failure to take a blood alcohol test to be part of the DUI offense. One juror said that she understood count two of the indictment to mean that Defendant would lose her license if she were found guilty, and that this had "somewhat" of an influence on her decision. The juror later said, however, that her vote of guilty was based on the evidence presented at trial, and that she had general knowledge of the consequences of refusing to take a blood alcohol test. All twelve jurors confirmed that they would have voted to convict even if count two h
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